574 S.E.2d 688 (N.C.App. 2002), COA02-291, Faulconer v. Wysong and Miles Co.

Docket Nº:COA02-291.
Citation:574 S.E.2d 688, 155 N.C.App. 598
Party Name:E.L. FAULCONER, Jr., Plaintiff, v. WYSONG AND MILES COMPANY, Defendant.
Case Date:December 31, 2002
Court:Court of Appeals of North Carolina
 
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Page 688

574 S.E.2d 688 (N.C.App. 2002)

155 N.C.App. 598

E.L. FAULCONER, Jr., Plaintiff,

v.

WYSONG AND MILES COMPANY, Defendant.

No. COA02-291.

Court of Appeals of North Carolina

December 31, 2002.

Page 689

Appeal by defendant from judgment entered 12 December 2001 by Judge William Z. Wood, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 14 November 2002.

Adams Kleemeier Hagan Hannah & Fouts, by Eric H. Biesecker, Greensboro, for plaintiff appellee.

Forman Rossabi Black Marth Iddings & Slaughter, P.A., by Amiel J. Rossabi, Greensboro, for defendant appellant.

McCULLOUGH, Judge.

Plaintiff E.L. Faulconer, Jr., served as an employee of defendant Wysong & Miles Company for approximately 30 years. On or about 26 October 1981, plaintiff and defendant entered into an Amended and Restated Agreement (Agreement). This Agreement provided for plaintiff to receive supplemental retirement and death benefits from defendant in recognition of his years of faithful service, loyalty to defendant (including a non-compete provision) and required physical check-ups.

Plaintiff retired from defendant's employ in 1987. According to plaintiff, defendant

Page 690

was obligated to him in the sum of $2,620.80 per month under the Agreement. It appears that all payments were made [155 N.C.App. 599] up until the fall of 2000. At that point, defendant suspended its payments to plaintiff.

Plaintiff filed a complaint on 2 July 2001. According to plaintiff, as of the date of the complaint, defendant had missed 8 payments, and owed him the principal sum of $20,966.40 plus interest.

Defendant filed its answer on 10 September 2001. In its answer, defendant admitted that the two parties had entered into the aforementioned agreement. Defendant further admitted that it had failed to make the 8 payments, stating that "due to existing impracticability, Wysong has failed to make some payments to Mr. Faulconer." The focus of this appeal are the affirmative defenses included in defendant's answer. They are as follows:

FIRST AFFIRMATIVE DEFENSE

Due to the precipitous decline in the metal-working machine manufacturing industry, for which Wysong is not in any way responsible, and the non-occurrence of which event was a basic assumption on which the Agreement was made, it is impracticable for Wysong to continue making payments to Mr. Faulconer and therefore, Wysong is discharged from any such responsibility.

SECOND AFFIRMATIVE DEFENSE

Wysong repeats and realleges all of the allegations contained in the Complaint and the First Affirmative Defense as if restated herein. In addition, payments to Mr. Faulconer by Wysong, due to the precipitous decline in the metal-working machine manufacturing industry, could be made only at an excessive and unreasonable cost to Wysong.

THIRD AFFIRMATIVE DEFENSE

Wysong repeats and realleges all of the allegations contained in the Complaint and the First and...

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